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State v. Jackson10/14/2005
e v. Lauren El. Leslie and Janie Whitehead, No. 03C01-9804-CR-00125, 1999 WL 153773, *4 (Tenn. Crim. App., at Knoxville, Mar. 23, 1999), perm. to appeal denied (Tenn. Sept. 13, 1999) (A convicted felon's release eligibility date percentage has no relationship to misdemeanor sentencing).
A misdemeanor defendant's eligibility for participation in custodial programs does not equate to a release from confinement. As a panel of this Court observed in Leslie,
he actual decision to admit the defendant to [a rehabilitative] program is entrusted to the discretion of "the administrative authority governing the rehabilitative program." Tenn. Code Ann. * 40-35-302(d). The percentage contemplated by subsection (d) does not establish a per se date for release from confinement altogether because release depends upon the future discretionary act of an administrative agency and, in any event, any release is part of a structure "rehabilitative program" and may be only partial or sporadic in nature.
Leslie, 1999 WL 153773, at *4.
Tennessee Code Annotated section 40-35-302 "contemplates that the trial court will treat separately the issues of `percentage' and probation" in misdemeanor sentencing. State v. Scott Wyatt, No. M1998- 00470-CCA-R3-CD, 1999 WL 1266338, at *6 (Tenn. Crim. App., at Nashville, Dec. 29, 1999), perm. to appeal denied (Tenn. 2000). The trial court's order setting Defendant's "release eligibility date" at eighteen days, however, is more analogous to the use of a percentage for calculating a release eligibility date for parole in felony cases. See Tenn. Code Ann. * 40-35-501. It is possible that the trial court contemplated that Defendant would be released on probation after serving five percent, or eighteen days, of her Class A misdemeanor sentence in confinement.
A careful review of the record does not resolve the conflict between the trial court's sentencing considerations pronounced at the sentencing hearing and the sentencing judgment. Accordingly, we reverse Defendant's sentence for her conviction for driving a commercial vehicle under the influence of alcohol and remand for a new sentencing hearing.
To provide guidance on remand, we will address Defendant's challenge on appeal to the enhancement factors considered applicable by the trial court.
In its sentencing determinations, the trial court is directed to consider the nature and characteristics of the criminal conduct involved. See Tenn. Code Ann. * 40-35-210(b)(4). The trial court considered that both an open and unopened bottle of beer were in Defendant's cab at the time of the accident. Although possession of alcohol in the vehicle is not an element of the offense of driving a commercial vehicle under the influence of alcohol, see id. 55-5- 405(a)(1)(A); 55-10-401(a), this evidence was discovered during a search that did not meet constitutional standards. Accordingly, the trial court may not consider this evidence in its sentencing determinations relative to Defendant's DUI conviction.
Defendant argues that the trial court's consideration of enhancement factor (17) was inappropriate because there was no proof that there was a "victim" of her offense. The trial court acknowledged that enhancement factor (17) is generally not applicable to sentencing considerations for DUI convictions, but based its application of this factor on the circumstances of Defendant's offense which involved "an eighteen-wheeler hitting a vehicle that was stationary with a man working close to it with beer in the tractor-trailer."
We conclude, however, that the trial court's consideration of enhancement factor (17) was inappropriate. Our Supreme Court has stat
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